The civil liability of robots (and III)

March 14 , 2024 // Specialty

Published in El Economista

The literal wording refers to the "injured person", which seems to extend beyond the consumer, but the reality seems to be different, and that is that this Law grants protection specifically to consumers and users, and not to any potential person harmed by the damage caused by the defective product.
It is time to define the concept of a defective product in accordance with the aforementioned Law, to determine if the subsumption of the robot as such is possible.

The art. 6 provides that "…any movable property is a product in accordance with the provisions of article 335 of the Civil Code", on the other hand, in art. 137 provides that:

1. A defective product will be understood to be one that does not offer the security that could legitimately be expected, taking into account all the circumstances and, especially, its presentation, its reasonably foreseeable use and the time of its putting into circulation.

2. In any case, a product is defective if it does not offer the security normally offered by other copies of the same series.

Limited in accordance with the provisions of the legal provisions on the matter, the concept of a defective product can be considered insufficient to solve the problems caused by damage caused by robots.

Although the legal definition is certainly broad, it does not fit within the framework of civil liability because it is not a question of the robot being "broken", but rather that it does not offer predictable safety.

The doctrine indicates the existence of two elements in the "defective character": a) that the product is more dangerous for the buyer, than would be expected given its characteristics and b) that the damage caused is beyond reason, automatically being excluded. those hypotheses of manifest danger.

The problem with all this regulation for damage caused by a defective product is that civil liability for damage caused by robots that are not defective is not covered.

The difficulty of regulating robotics lies in the unpredictability of the development and autonomy in the behavior of these intelligent devices. And the legislator is no stranger to this as reflected in art. 140.1.e, which among the causes of exoneration of liability contemplates that:

"The producer will not be responsible if he proves: e) That the state of scientific and technical knowledge existing at the time of putting it into circulation did not allow the existence of the defect to be appreciated."

Furthermore, art. 137.3 of the same text states that "a product cannot be considered defective simply because such product is subsequently put into circulation in a more perfected form."

Which, for greater completeness, corroborates the impossibility of giving a precise legal response to the problem of the civil liability of robots, based on the logical advance and development of increasingly autonomous prototypes in a field that is in constant change due to the technological advances of our era.

6.- Objective responsibility and risk management. At first, the possibility of establishing a system of objective liability or risk management is contemplated, which requires repairing the damage caused by robots, for the simple fact of having caused them, distributing the responsibility between manufacturers. , merchants, programmers and users, establishing the obligation to create mandatory insurance for damages that may occur.

But the European Parliament makes a distinction between the system of strict liability which only "requires proving that damage or harm has occurred and the establishment of a causal link between the harmful operation of the robot and the damage or harm caused to the person who caused it." has suffered"; and the risk management system, which "does not focus on the person who acted negligently as personally responsible, but on the person who is capable, in certain circumstances, of minimizing the risks and managing the negative impact."

It would be interesting to propose the establishment of a compensation system based solely on the repair of damage and not on responsibility, without having to carry out an analysis of who is attributable to that damage, so that once the objective production has been certified If damage occurs, it must be repaired automatically, either through insurance arranged by the user, manufacturer or owner of the robot, or, when this insurance is not sufficient, through the creation of a European compensation fund, which functions as made by the Insurance Compensation Consortium in Spain for the eventuality that a technical risk occurs, and which is financed either by contributions from the manufacturers or through an indirect taxation system that is added to the acquisition price of the products. robots.

Another way would be to establish a criterion of solidarity in responsibility so that all of them can respond for eventual compensation with the consequent claim to the other subjects involved in the production of the robot. There is enormous difficulty in determining the degree of objective, non-faulty responsibility that each person or person involved in the design, manufacturing, training, distribution, programming and learning of the robot has.

Lawyer, economist, auditor, doctor and professor of the Fiscal System. Founding partner of Firma Martín Molina.